Selected Rulings posted by PERB – A question of jurisdiction

Selected Rulings posted by PERB – A question of jurisdiction

United Federation of Teachers and the Board Of Education of the City School District of the City of New York, PERB U-28996

Although the Board dismissed exceptions filed by the employee after finding that she did not timely serve her exceptions upon UFT and the School District pursuant §213.2(a) of the Rules of Procedure, it noted that had it addressed the merits of her exceptions it would have dismissed them as PERB “does not have authority to determine alleged violations of Education Law §3020-a, or alleged violations of the terms of an unexpired agreement.”

Employee’s ADA claim for damages survives promotion to a higher grade position

Employee’s ADA claim for damages survives promotion to a higher grade position
Matter of Jochelman v New York State Banking Dept., 56 AD3d 375

After the New York State Banking Department denied Irving Jochelman a promotion to the position of Principal Bank Examiner I, Jochelman sued

Supreme Court granted Banking’s motion to dismiss his petition because Jochelman had been given the promotion underlying his complaint prior to his appeal, which also had the effect of “rendering moot that portion of his complaint seeking back pay.”

The Appellate Division, however, reversed the lower court’s dismissal of Jochelman’s petition “as a matter of law” explaining that his complaint also sought damages under the Americans with Disabilities Act (ADA).

Reinstating Jochelman’s ADA claim, but dismissing the remainder of his appeal as moot, the court explained that Jochelman's “separate claim for damages related to [Banking’s] allegedly discriminatory behavior has not been rendered moot by [Jochelman’s] promotion.”

Finding that Jochelman’s “ADA claim “was not without merit as a matter of law,” the Appellate Division indicated that the record raised factual issues as to whether Banking failed to make reasonable accommodations for the alternative workspace that Jochelman had requested for medical reasons and remanded the case to Supreme Court for its further its consideration of that issue.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09267.htm

Appellant required to meet a high burden by showing, with clear and convincing evidence, that the disciplinary hearing officer was partial

Appellant required to meet a high burden by showing, with clear and convincing evidence, that the disciplinary hearing officer was partial

Batyreva v N.Y.C. Dept. of Educ., 2012 NY Slip Op 04234, Appellate Division, First Department

Supreme Court, New York County denied the CPLR Article 75 petition seeking to vacate an arbitration award which found that the New York City Department of Education had just cause to terminate the employee, Olga Batyreva. The Appellate Division unanimously affirmed the lower courts ruling.

Explaining that the award was made in accord with due process, is supported by adequate evidence, is rational and is not arbitrary and capricious, the court noted “(e)ach of the sustained specifications was well supported by both documentary evidence and witness testimony.”

Batyreva, said the Appellate Division, failed to meet the high burden of showing, by clear and convincing evidence, that the hearing officer was partial, noting that it had not found any basis in the record to support a finding of partiality. Further, said the court, to the extent that Batyreva’s contention “is premised upon the hearing officer's credibility determinations, her arguments are unavailing because she failed to show that the hearing officer's credibility findings evince a bias against her.”

As to the penalty imposed, termination, the court rejected Batyreva’s claim that it is unwarranted and shocks the conscience.

In the words of the Appellate Division: “Not only does the high volume of sustained specifications of misconduct, standing alone, justify termination … but also [Batyreva] repeated unsuccessful attempts to cast [the employer], the witnesses, the hearing officer, a federal judge, and a Supreme Court Justice as somehow biased against her tend to show her "failure to take responsibility for her actions."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04234.htm

The lack of substantial evidence to support the hearing officer’s findings results in the court annulling the disciplinary action

The lack of substantial evidence to support the hearing officer’s findings results in the court annulling the disciplinary action

Meaney v Village of Johnson City, 2012 NY Slip Op 04265, Appellate Division, Third Department

The mayor of the Village of Johnson City demoted a fire captain to firefighter first class after adopting the findings of the disciplinary hearing officer that a fire captain was guilty of multiple counts of misconduct and incompetence.

The Appellate Division annulled the mayor’s determination and reinstated the captain to his former position with back salary.

In explaining its ruling the Appellate Division said:

1. Substantial evidence does not support the determination of guilt;

2. The disciplinary charges were based on the captain’s “failure to disclose information that was neither solicited nor relevant to the conversation” with a police detective and “under no reasonable view of the evidence can it be said that the captain’s silence was willful or indicative of ‘some dereliction or neglect of duty’ on his part;” and

3. The captain was not charged with making inaccurate statements to his superior and, thus, cannot be disciplined for allegedly making such statements.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04265.htm

Retirement System’s Medical Board’s determination that applicant is not disabled trumps Workers’ Compensation Board’s determination to the contrary

Retirement System’s Medical Board’s determination that applicant is not disabled trumps Workers’ Compensation Board’s determination to the contrary

Vargas v New York City Employees' Retirement Sys., 2012 NY Slip Op 04185, Appellate Division, Second Department

Alex Vargas filed a petition pursuant to CPLR Article 78 challenging a determination of the Board of Trustees of the New York City Employees' Retirement System [NYCERS] that denied his application for accidental disability retirement benefits pursuant to Retirement and Social Security Law §605-b. When Supreme Court denied his petition, Vargas appealed.

The Appellate Division affirmed the lower court’s ruling, explaining that NYCERS’ Medical Board determines whether a member applying for accidental disability retirement benefits is disabled and NYCERS’ Board of Trustees of the New York City Employees' Retirement System is bound by the Medical Board's determination as to whether an applicant is disabled. Further, said the court, the Medical Board's determination is conclusive if it is supported by some credible evidence and is not irrational.

The record demonstrates that the Medical Board considered all of the medical evidence submitted by Vargas, interviewed him, and performed its own physical examination of him. Although the medical conclusions of some of Vargas' treating physicians differed from that reached by the Medical Board, the resolution of such conflicts is solely within the province of the Medical Board.

Rejecting Vargas’ argument to the contrary, the Appellate Division said that a disability determination by the Workers' Compensation Board does not control the Medical Board's disability determination.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04185.htm